Diversity and Race-Neutrality

The most important,
elusive, and misunderstood aspect of federal affirmative action jurisprudence
is the requirement of "serious consideration." Before commencing or continuing race-conscious, nonremedial affirmative
action plans, public institutions, including colleges and universities, must
apply "serious, good faith consideration" to workable race-neutral alternatives
(RNAs).[1] This requires not only that less racially
intrusive alternatives be unavailable, but also that institutions establish
this unavailability through a largely undefined process of "serious
consideration."[2] The measure one should use to establish this (un)availability remains
unknown. In higher education, since RNAs
typically tout diversity, it is easy to assume that they should be measured
against their ability to increase the representation of previously
underrepresented student racial and ethnic groups. In fact, such measures raise serious
constitutional problems to the extent that they indicate that the actual goal
of the RNA's is racial balancing. This
Essay argues that because the only legally viable purpose for nonremedial
race-conscious admissions practices are "the educational benefits that flow
from a diverse student body,"[3]
only direct measures of those educational benefits are proper for "serious
consideration." In other words, RNAs
must be evaluated against their ability to raise actual educational
achievement.

I. The Increasing Importance of the RNA Requirement

RNAs are programs that
strive to meet diversity goals in a manner that is not race-conscious.[4] The requirement that RNAs be seriously considered has developed over
time. It began as a scholarly analysis
of the "narrow tailoring" prong of the strict scrutiny test,[5] and was introduced into affirmative
action jurisprudence in Justice Lewis Powell's Wygant opinion, which established that courts must "give particularly intense scrutiny to whether a nonracial
approach or a more narrowly-tailored racial classification could promote the
substantial interest about as well and at tolerable administrative expense."[6] RNAs were transformed by Justice Sandra Day O'Connor's
Croson, Adarand, and Grutter
opinions into a separate, enforceable requirement that public and educational institutions
themselves seriously consider
race-neutrality before resorting to race-conscious measures.[7] Most recently, the RNA requirement has been
institutionalized in the Parents Involved
in Community Schools decision as an independent basis for striking down
affirmative action plans.[8]

The requirement is
important because its enforcement is at the same time both simple and
complex. In many cases, an institution
may ignore race-neutral alternatives altogether and therefore be vulnerable to
a legal challenge, which is quick, simple, and cheap. This simplicity is in contrast with other
grounds on which post-secondary racial preference schemes may be challenged,
most of which are resource-intensive, factually complicated, and politically
sensitive. For example, a particular
institution's admissions scheme might be challenged on whether it more closely
resembles the University of Michigan's
undergraduate college in Gratz v.
Bollinger or its law school in Grutter
v. Bollinger. This determination may
require considerable fact-intensive review, subjective determinations, and a
battle of expert witnesses.

By contrast, if an
institution has not even considered the use of race-neutral alternatives, a
challenge by the U.S. Department of Education's Office for Civil Rights or a
private litigant is more or less cut and dried.[9] Since many institutions do nothing to meet
this requirement, they are sitting ducks in the face of any potential
challenge. In this sense,
serious-consideration cases are important because they are so easy for the
plaintiff to prove. In 2004, the Office
for Civil Rights challenged a number of school districts for failing to
consider race-neutral alternatives to the use of racial preferences in their
magnet-school student assignment plans. If the districts had actually considered RNAs, the permissibility of
those preferences would have been a legally and politically difficult question;
absent this consideration, the cases were much less difficult.

The
serious-consideration requirement, however, is not always this simple. While serious consideration is clearly
required, there is little guidance on exactly what this means. Although in many cases institutions apply
little or no consideration and the outcome is simple,[10]
when institutions provide some consideration, even if perfunctory, it becomes
difficult for courts to determine whether the consideration is sufficient. This is due in part to the courts' failure
thus far to adopt principles for the evaluation of diversity reviews. Extrajudicial guidance on this issue is also
limited, consisting of one or two government reports,[11]
various trade and professional publications by attorneys for organizations such
as the College Board,[12]
and one law review article.[13] Otherwise, the field is largely clear. The claim that one does not even know what it
would mean to "seriously consider" race-neutral programs has some
justification.

II. The Measure of Success

For those who would
apply the serious-consideration requirement properly, the most difficult
question is how to measure the likely success of race-neutral diversity
programs. If their effectiveness is to
be evaluated, it must be evaluated against a particular standard. Since many members of the higher education
community think of diversity programs as efforts to increase minority
representation, it is tempting to measure such plans against their ability to
achieve this goal.[14] However, an institution's use of such narrow measures would likely
indicate that its professed commitment to multifactored diversity is
pretextual. Alternatively, an
institution seeking the judicially approved educational benefits flowing from
multifactored diversity would logically measure the success of diversity
programs in terms of their ability to achieve either multifactored diversity
(indirect measures) or the educational benefits themselves (direct measures).[15] That is to say, an institution might directly evaluate the extent to which
diversity programs increase intergroup understandings, break down stereotypes,
etc., or indirectly evaluate the
extent to which these programs foster the multifactored student diversity,
which is expected to advance the pursuit of these goals.

A. Racial Diversity Measures

It is natural for most
higher education participants and commentators to evaluate race-neutral
admissions programs against their ability to increase the representation of
previously underrepresented student populations.[16] Exclusive use of such measures, however,
creates significant litigation risk since it implies that race-conscious measures
are employed to achieve impermissible racial balancing, rather than to yield
the compelling educational benefits that flow from a multifactored
diversity. After all, the measure of
success that an institution employs can speak volumes about the goals it is
trying to achieve.

For example, in 2000
the University of Texas at Austin bragged that its race-neutral Texas Ten
Percent Plan had succeeded by enabling Texas to bring its 1999 enrollment for
African-American and Hispanic students back to pre-Hopwood v. Texas[17]
levels.[18] This was an impressive claim since the Fifth Circuit's 1996 Hopwood decision had barred
the use of race as a factor in student admissions.[19]Based
on Texas's public pronouncements, however, it is clear that the program
measured its success based on its ability to enroll African-American and
Hispanic students, rather than its ability to enroll students who exhibited the
wide range of diversity-characteristics (economic, geographic, political) which
a multifactored diversity scheme would seek. Unsurprisingly, there is considerable evidence that this "racial
balancing" was indeed Texas's
goal.[20] While this goal has considerable support
within the academy, it is decidedly not compelling in the eyes of contemporary
affirmative action law.

The U.S. Supreme Court
has repeatedly emphasized that, by itself, increasing racial or ethnic
representation is not a sufficiently compelling interest to justify the use of
racial preferences.[21] Rather, the legally cognizable diversity
interest consists of an institution's efforts to achieve the educational
benefits that flow from the interchange of varied and opposed viewpoints and
perspectives, as may be accomplished by admitting students who collectively
create a multifactored diversity.[22] To judge a plan exclusively against its
ability to attract African-American and Hispanic students would imply a
pretextual character to the institution's pursuit of multifactored
diversity. To the extent that the
educational benefits flowing from multifactored diversity are indirectly
measured by a program's ability to produce such diversity, they must be
measured according to numerous characteristics, and not just race and
ethnicity.

B. Indirect Measures

Some may choose to
measure RNAs according to their ability to achieve a multifactored
diversity. In other words, racially
preferential practices will be measured against the ability of race-neutral
alternatives to succeed, more or less as well, at achieving the full range of
diversity characteristics which institutions seek as a means of achieving
certain educational benefits. These
diversity characteristics may include race and ethnicity only as part of a
wider range of attributes that may include socioeconomic, geographic, and
ideological diversity, as well as a diversity of skills, interests, and
experiences, and demonstrated ability to overcome different kinds of
disadvantages.

This approach is less
likely to produce litigation than the narrower racial diversity measures but is
also arguably less candid. In many cases,
the approach insulates diversity programs by concealing the social justice concerns
that motivated their creation. In
addition, for institutions that sincerely seek the educational benefits that
flow from diversity—or at least claim to do so—indirect measures are at best
weak indicia of that ultimate goal. Furthermore, absent unusual considerations, an exclusive reliance upon
indirect measures may also appear pretextual. Why not measure educational benefits directly if this is the motivation
for diversity programs?

Even accepting that
educational benefits flow from multifactored diversity, this does not mean that
diversity attributes can serve as a proxy for educational achievement. A program that garners the requisite
diversity may not capture the educational benefits that are expected to flow
from it. The focus should be on the
extent to which various diversity programs are able to translate educational
strategies (attaining multifactored diversity) into ultimate goals (specific
educational benefits). Unless the
ultimate educational goals are immeasurable, there can be no excuse for an
institution's failure to measure them in any evaluation that purports to
constitute "serious consideration."

C. Direct Measures

If an institution's
purpose in pursuing affirmative action is to produce the educational benefits
that flow from multifactored diversity—the only permissible purpose according
to the Supreme Court—then the measure of that institution's success, logically,
should be its ability to achieve those educational benefits. Given the seriousness with which the Court
treats any form of racial preference, it follows that serious consideration of
race-neutral alternatives must include an assessment of whether those alternatives
can achieve the same (or equally worthy) educational benefits as a proposed
racially conscious scheme. In other
words, to pass court scrutiny, institutions must seriously consider whether the
same level of educational attainment believed to be available through the
inclusion of racial and ethnic criteria in a multifactored diversity approach can
also be achieved through nonracial means. Despite its logical basis, there are two problems facing this approach.

The first problem with
the direct educational benefits approach is that there is no broad consensus on
what those benefits are or whether race-conscious actions actually achieve
them—particularly when they are not accompanied by active efforts to achieve
intergroup student engagement.[23] The extent to which even race-conscious measures
have succeeded in attaining educational benefits has been widely disputed in
the literature, as the Court has more recently recognized in Parents Involved in Community Schools.[24] Even those who support preferential programs
sometimes observe that racial diversity alone is insufficient to achieve
educational benefits absent additional measures to promote active engagement.[25] If racially-conscious programs do not achieve
demonstrable educational benefits, their failure is not a shortcoming of the
direct benefits measure; rather, this failure would suggest a deficiency in
either the manner in which the programs are designed and executed or the
justification for the use of racial preferences. Some diversity advocates, however, have long
insisted that diversity yields strong benefits in a host of areas, including
both higher education and the public schools.[26] In Grutter,
for
example, the University of Michigan successfully
persuaded the Supreme Court, based in significant part on the work of
Patricia
Gurin, that student diversity yields important educational benefits.
Specifically, Michigan argued that its law school's "admissions
policy promotes 'cross-racial understanding,' helps to break down
racial
stereotypes, and 'enables [students] to better understand persons of
different
races.'"[27] Diversity programs must identify specific,
demonstrable educational benefits and determine whether their race-conscious
programs achieve those benefits more effectively than RNAs do.

Michigan's proffered educational benefits
may serve as an illustrative example. Suppose that an institution seeks, as did Michigan, to promote cross-racial
understanding, break down racial stereotypes, and enable students to better
understand persons of different races. A
less deferential court might be suspicious of an institution that defines
educational goals in such racially conscious ways; after all, if the goal is
entirely educational, then why should a college not seek the broadest range of
cross-cultural understandings, the removal of all cultural stereotypes, and the
cultivation of better understanding of all people? Either way, however, these educational goals
are clearly measurable, as Dr. Gurin's expert report in the Michigan case established.[28] Institutions can measure the extent to which
they are achieved through different programs: student admissions programs,
student exchange programs, freshman orientation training, travel abroad
programs, ethnic studies courses, experiential learning courses, etc.

Second, a diversity
program that achieves educational benefits without increasing the
representation of underrepresented groups may still be considered a failure
within the higher education community (and by the institution's
accreditors). It has been argued that
most people form their positions on racially preferential admissions at least
partly on the basis of moral principle.[29] For such persons, it may be unsatisfactory to
consider only the direct benefits of diversity programs. After all, a pure direct benefits measure may
validate a diversity program on its ability to raise overall diversity-related
educational attainment even if the program entirely failed to increase the
enrollment of minority students. Diversity advocates typically support higher education diversity at
least in part as an ultimate end, not only as an instrumental good. Alternatively, even if an institution is
primarily motivated by the educational benefits, which it believes will flow
from diversity, it may still favor racial and ethnic diversity as a means to
accomplish that ultimate goal, based on independent (if nonpredominant)
considerations favoring diversity. This
second problem, however, arises from institutions called on their bluffs about
being motivated solely by educational benefits. In this respect, the problem is merely a superficial—and
improper—barrier to implementing a direct measure approach.

Diversity policies are
predicated on their ability to yield educational benefits; it would thus be
appropriate for the institution to adopt policies which maximize the full range
of benefits that diversity is said to advance, not just those which align with
social justice values which may be embraced by some portion of the university
community. Ideally, this approach will
enable the institution to focus with undiminished concentration upon its
ultimate educational goals.

Conclusion

The
serious-consideration requirement deserves much more attention than it has thus
far received. Whatever one's views of
the normative desirability of RNAs, they are now deeply embedded in
contemporary affirmative action jurisprudence. Since Grutter, it is now
unmistakably clear that state actors and federally assisted agencies (including
universities) that employ racial or ethnic preferences (including universities)
must engage in a serious evaluative process to determine whether these
preferences could be replaced by effective RNAs.

Some may argue that
any sustained explication of the Supreme Court's serious-consideration
requirement affords the Court's affirmative action jurisprudence a degree of
literalness that it does not merit. Those who are more cynical or more skeptical may not take the Court at
its word, seeing the serious-consideration requirement as mere lip-service to a
traditional narrow-tailoring element which has been rendered insignificant in
light of the degree of deference, which the Court afforded to the University of Michigan's perfunctory consideration in Grutter.[30] Yet it cannot be gainsaid that the Court has
continued to give teeth to the serious-consideration requirement as recently as
Parents Involved in Community Schools.[31] As long as the serious-consideration
requirement remains a part of affirmative action jurisprudence, it has a
potential bite which may be more lethal than any other element of the strict
scrutiny analysis. While many
institutions apparently still ignore this requirement, or only perfunctorily
purport to satisfy it, they do so at considerable litigation risk.

When universities
evaluate the various available RNAs, they must select a measure against which
to determine their effectiveness. The
most obvious measure—their ability to maintain or increase minority enrollment—is
also the surest legal loser. Other
measures also have problems which are more subtle. In a nutshell, if institutions seek the
educational benefits that flow from diversity, they may gauge their success
either directly (by measuring educational benefits themselves) or indirectly
(by measuring the diversity intended to produce such benefits). While indirect measures may have features that
are attractive from the perspective of some social justice concerns, they are
significantly less convincing as a means of demonstrating compliance with
applicable law. In the end, there is no
substitute for direct measures.

————

*. Lillie and Nathan Ackerman Chair in
Equality and Justice in America, Baruch College School of Public Affairs, The
City University of New York. The author
previously served as Staff Director, U.S. Commission on Civil Rights
(2004–2008) and was delegated the authority of Assistant Secretary of Education
for Civil Rights (2003–2004). An earlier
version of this Essay was presented at the 15th Annual Education Law Conference
at the University of Southern Maine and the
University of Maine Law School. Roger
Clegg, George La Noue, Mark Weber, and various conference participants provided
helpful comments, but fault for any deficiencies remains with the author.

6. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280
n.6 (Powell, J., plurality op.) (1986) (quoting Greenawalt,
supra note 5, at 578–79 (1975)). Specifically, Powell faulted the Board of
Education for resorting to layoffs of nonminority teachers when the use of
hiring goals would have been less intrusive. See id. at 283–84.

9. While
most analyses focus on the prospect of litigation before Article III courts, it
is my observation that administrative action by the Office for Civil Rights is
both more frequent and more important. For an explanation of this point, seeKenneth L. Marcus, Anti-Zionism as
Racism: Campus Anti-Semitism and the Civil Rights Act of 1964, 15 Wm. & Mary B. of Rts. J. 837, 856–58 (2007).

10. The
President-Elect of the Association of American Law Schools, Rachel Moran, has
confirmed the suspicion held by many observers outside of higher education,
that colleges outside of California and Texas are largely ignoring
this requirement. See Rachel F. Moran, Symposium, Of
Doubt and Diversity—The Future of Affirmative Action in Higher Education,
67 Ohio St. L.J. 201, 231 (2006) ("Despite
federal efforts to promote these alternatives, colleges and universities have
not paid as much attention to this part of the Grutter opinion."). Some prominent higher education attorneys
have claimed in conversations with the author that some of their clients are
taking this requirement seriously, but they have been unwilling to name the
institutions that do so.

15. The
concept of "direct measures" is developed in Daria Roithmayr, Direct Measures: An Alternative Form of
Affirmative Action, 7 Mich. J. Race
& L. 1, 6 (2001). Roithmayr,
however, develops the concept very differently than does this Essay. For a discussion of "direct measures," in the
context of serious consideration of race-neutral alternatives, seeLa Noue & Marcus, supra note 2 (manuscript at 34–35).

18. See Larry Faulkner, The "Top 10 Percent Law" Is Working for Texas, The Univ. of Tex. at Austin
Office of the President, Oct. 19, 2000, http://www.utexas.edu/student/admissions/research/faulknerstatement.html
(link). These boasts may come back to haunt Texas in light of
subsequent developments. After the Grutter decision came down, Texas
replaced its percentage plan with a race-conscious approach, which is subject
to a pending constitutional challenge in Fisher
v. Texas, 556 F. Supp. 2d 603 (W.D. Tex. 2008). In that case, an unsuccessful student applicant
claims that Texas's current use of racial
preferences is impermissible in light of Texas's
admission that it not only seriously considered, but successfully adopted, a
race-neutral alternative. Fisher, 556 F. Supp at 605–06. The Center for Equal Opportunity and civil
rights activist Edward Blum have made similar claims in a complaint brought
against Texas
before the Office for Civil Rights.

20. See Faulkner, supra note 18 (discussing increases in the admission and retention
levels of African-American and Hispanic students to the University
of Texas at Austin since the Top Ten Percent Law took
effect). Michigan made precisely this point to the Supreme Court in Gratz,
arguing that the "purpose
and intended effect" of Texas's facially-neutral plan "is to achieve
some measure of racial diversity." Brief for Respondents at 13, Gratz
v.
Bollinger, 539 U.S. 244 (2003) (No. 02-516), available at
http://conlaw.usatoday.findlaw.com/supreme_court/briefs/02-516/02-516.mer.resp.lb.pdf
(link).

24. See Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 127 S. Ct. 2738,
2776–79 (2007) (Thomas, J., concurring) ("Scholars
have differing opinions as to whether educational benefits arise from racial
balancing."). The U.S. Commission
on Civil Rights also recently reached this conclusion in the context of elementary
and secondary education. SeeU.S.
Comm'n on Civil Rights, The Benefits of Racial and Ethnic Diversity in
Elementary and Secondary Education 15 (2006), available at http://www.usccr.gov/pubs/112806diversity.pdf (finding
that "[t]here is little evidence that racial and ethnic diversity in elementary
and secondary schools results in significant improvement in academic performance"
and that "[s]tudies of whether racial and ethnic diversity result in
significant social and non-educational benefits report varied results") (link).